STATE OF MAlNE STATE OF MAINE CUMBERLAND SS

umberland s~ Clerl(sOffice SUPERIOR COURT CIVIL ACTION DOCKET NO CUMSC-RE-16-148 NOV 1 7 2016

~ECEIVED US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR WATERFALL OLYMPIC MASTER FUND GRANTOR TRUST SERIES I

Plaintiff

v

DIMITRI J BOURAS

Defendant

) ) ) ) Judgment of Foreclosure and Sale

Title to Real Estate is Involved

11 Town Hall Place amp 8 Pleasant St Brunswick ME 04011 Cumberland County Registry of Deeds Book 25946 Page 1

) ) ) ) ) ) ) )

ORDER AND JUDGMENT

Before the court are (1) Defendants motion to dismiss Plaintiffs complaint for

commercial foreclosure and breach of contract (2) Plaintiffs motion for summary judgment 1

The court elects to decide both motions without oral argument See MR Civ P (b)(7)

For the following reasons Defendants motion is denied and Plaintiffs motion 1s

granted

I Background

On March 31 2008 Defendant executed and delivered to Banco Popular North America

(Banco) a promissory note in the amount of $42000000 (Supp SMF ~ 2) To secure the

note Defendant executed and delivered to Banco a mortgage on property located at 11 Town

Hall Place and 8 Pleasant Street which does not serve as Defendants primary residence (Id

~ ~ 3-4 12) Also on March 31 2008 Defendant executed and delivered to Banco an

Also before the court is the purported entry of appearance of 11 Town LLC which was filed November 8 2016 11 Town LLC is not named as a party-in-interest in the case and has not filed any motion to intervene An alleged party-in-interest cannot simply enter an appearance in a pending case-a motion to intervene is necessary Also the entry of appearance refers to a counterclaim that has not been filed in this case (and that cannot be unless intervention is granted) Accordingly the entry of appearance is a nullity and is not addressed further

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assignment of rents collected at 11 Town Hall Place and 8 Pleasant Street (Id ~~ 5-6) On

October 2 2014 Banco endorsed the note to Sutherland Asset I LLC which subsequently

endorsed the note in blank (Id ~ 7) On December 16 2014 Banco assigned the mortgage and

assignment of rents to vVaterfall Olympic Master Fund Grantor Trust Series I (Id ~ ~ 8-9)

Plaintiff US Bank Trust National Association brings this action as Trustee for Waterfall

Olympic Master Fund Grantor Trust Series I

Plaintiff alleges that Defendant has defaulted on the note mortgage and assignment of

rents and that as a result Defendant owes the remaining principal balance of $38849220 plus

interest of $6351818 late fees of $205103 processing fees of $85000 advances of $872492

and attorneys fees and costs of $752765 (Id~~ 11 14)

Plaintiff filed a complaint on May 5 2016 In the complaint Plaintiff alleged count I

foreclosure and count II breach of contract Also on May 5 2016 Plaintiff filed a motion for

appointment of a receiver On June 10 2016 the court appointed Kevin ODonovan to act as

receiver Defendant was served on June 8 2016 and answered the complaint on June 27 2016

The case went to foreclosure mediation but was removed from the foreclosure diversion

program because the property is not the Defendants primary residence

Plaintiff filed a motion for summary judgment on August 29 2016 Defendant has not

filed an opposition to Plaintiffs motion Defendant filed a motion to dismiss with prejudice on

October 11 2016 Plaintiff filed an opposition to Defendants motion on October 28 2016

II Analysis

A Motion to Dismiss

Defendant argues that the court should dismiss Plaintiffs complaint with prejudice

because Mr ODonovan allegedly identified himself as the owner of 11 Town Hall Place and 8

Pleasant Street broke into these properties changed the locks and negotiated a lease for an

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apartment at 8 Pleasant Street (Defs Mot Dismiss 1) Defendants allegations do not offer a

basis for dismissal See MR Civ P 12(b)(1)-(1) Further the court has appointed Mr

ODonovan to act as receiver in this case and his alleged actions are not inconsistent with his

responsibilities as receiver (See 61016 Order (2)(b)-(c) (h)) On this record there is no

foundation for dismissing Plaintiffs complaint with prejudice

B Motion for Summary Judgment

Summary judgment is appropriate when the pleadings depositions answers to

interrogatories and admissions on file together with the affidavits if any show that there is no

genuine dispute of material fact and that any party is entitled to judgment as a matter of law

MR Civ P 56(c) A genuine dispute exists when sufficient evidence requires a fact-finder to

choose between competing versions of the truth at trial Parrish v Wright 2003 ME 90 ~ 8

828 A2d iiS To avoid a summary judgment the nonmoving party must respond by filing (1)

a memorandum of law in opposition to the motion for summary judgment (2) a statement of

material facts in opposition with appropriate record references and (s) copies of the

corresponding record references Levine v RBK Caly Corp 2001 ME 71 ~ 6 770 A2d 653 I

Defendant has not filed the required material Still even when a summary judgment

motion is unopposed the court has an independent obligation to review the entire record and

satisfy itself that the moving party is entitled to summary judgment

By failing to file an opposing statement of material facts Defendant has admitted the

facts contained in Plaintiffs statement of material facts MR Civ P 56(h)(4) As a result

there is no genuine dispute as to whether a contract exists between Plaintiff and Defendant

Plaintiff has provided the note mortgage and assignment of rents as well as the assignments

from Banco to Plaintiff (Supp SMF ~ ~ 2-9 Exs A-E) There also is no genuine dispute as to

whether Defendant is in default of the note mortgage and assignment of rents Plaintiff has

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provided a statement of Defendants account with Plaintiffs servicer KeyBank National

Association which shows that Defendant is in default in the amount of $465636 33 (Supp

SMF ~ 14 Ex F) The statement is supported by the affidavit of KeyBank employee Grant

vVinemiller which meets the foundational requirements of the business records exception MR

Evid 803(6) As a result no genuine dispute of fact exists on this record

III Conclusion

Based on the entirety of the record the court concludes that Defendants allegations

regarding Mr ODonovan do not warrant dismissal Plaintiffs unopposed statement of material

facts shows that there is no genuine dispute as to whether Defendant breached its contract with

Plaintiff under the note mortgage and assignment ofrents

The court further finds as follows

1 The names and addresses of all parties and their counsel of record are

Plaintiff US Bank co Patrick C Lever Bar No 5104

Attorney for Plaintiff Preti Flaherty Beliveau amp Pachios LLP One City Center Portland M~ 04101

Dimitri J Bouras PO Box 1121 Kennebunkport ME 04046

2 All parties received notice of the proceedings in this action and the notice was given in accordance with the applicable provisions of the Maine Rules of Civil Procedure

3 Reference is made to the mortgage dated March 31 2008 and recorded in the Cumberland County Registry of Deeds in Book 25946 Page 1 for an adequate description of the real estate involved

4 Plaintiff is owed the following

a Principal balance as of July 7 2016 $38849220

b Interest from April 5 2015 to July 31 2016 $4107555

c Default interest from May 5 2015 to July 31 2016 $2444263

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provided a statement of Defendants account with Plaintiffs servicer KeyBank National

Association which shows that Defendant is in default in the amount of $465636 33 (Supp

SMF ~ 14 Ex F) The statement is supported by the affidavit of KeyBank employee Grant

vVinemiller which meets the foundational requirements of the business records exception MR

Evid 803(6) As a result no genuine dispute of fact exists on this record

III Conclusion

Based on the entirety of the record the court concludes that Defendants allegations

regarding Mr ODonovan do not warrant dismissal Plaintiffs unopposed statement of material

facts shows that there is no genuine dispute as to whether Defendant breached its contract with

Plaintiff under the note mortgage and assignment ofrents

The court further finds as follows

1 The names and addresses of all parties and their counsel of record are

Plaintiff US Bank co Patrick C Lever Bar No 5104

Attorney for Plaintiff Preti Flaherty Beliveau amp Pachios LLP One City Center Portland M~ 04101

Dimitri J Bouras PO Box 1121 Kennebunkport ME 04046

2 All parties received notice of the proceedings in this action and the notice was given in accordance with the applicable provisions of the Maine Rules of Civil Procedure

3 Reference is made to the mortgage dated March 31 2008 and recorded in the Cumberland County Registry of Deeds in Book 25946 Page 1 for an adequate description of the real estate involved

4 Plaintiff is owed the following

a Principal balance as of July 7 2016 $38849220

b Interest from April 5 2015 to July 31 2016 $4107555

c Default interest from May 5 2015 to July 31 2016 $2444263

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d Late fees $2 05103

e Processing fees $85000 f Miscellaneous advances $872492

g Attorneys fees and costs to August 22 2016 $752765

TOTAL $473 163 98

5 The order of priority and the amount of the claim of each party is

a First to Plaintiff in the amount of $473163 98 plus pre-judgment interest at the contracted rate of 7 99 and post-judgment interest at the statutory rate pursuant to 14 MRS sect 1602-C

b Second to Defendant if there are any surplus funds remaining

It is hereby ORDERED AND ADJUDGED AS FOLLOWS

Defendants motion to dismiss with prejudice is denied and Plaintiffs motion for

summary judgment is granted Judgment is entered in favor of Plaintiff US Bank and against

Defendant Dimitri J Bouras on counts I and II of Plaintiffs complaint

If Defendant or his successors heirs and assigns do not pay the sum of $47316398

with interest to Plaintiff within 90 days of the date of this order Plaintiff shall proceed with a

sale of the property described in the mortgage If Defendant or his successors heirs and

assigns pay the sum of $47316398 with interest to Plaintiff within 90 days of the date of this

order Plaintiff shall discharge the mortgage and file a dismissal of this action with the clerk of

court

Plain tiff is ordered to record after the expiration of the appeal period an attested copy

of this order in the Cumberland County Registry of Deeds and to pay any recording fees

Pursuant to MR Civ P 79(a) the Clerk is hereby directed to incorporate this Order by

reference in the docket

Dated November 16 2016 -~ AM Horton Justice Superior Court

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CERTIFICATION OF CLERK

Pursuant to 14 MRS sect 2401(S)(F) it is hereby certified that no notice of appeal of the Judgment of Foreclosure and Sale in this matter was filed with the Clerk of Court within the appeal period following the entry ofjudgment

Dated Clerk of Court

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